November 8, 2010

High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 51900(U))

https://www.beynensonlaw.com/case-law/high-quality-med-p-c-v-mercury-ins-co-2010-ny-slip-op-51900u/

Court: Appellate Term, Second Department
Decided: November 8, 2010
Citation: 2010 NY Slip Op 51900(U) · 29 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132(A), 2010 NY Slip Op 51900(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's IME conclusions. The insurer sought summary judgment dismissing the fifth cause of action for lack of medical necessity. Its doctor's affidavit and affirmed IME report established that defense. The claim form identified the opposing physician as the provider corporation's principal, making the affirmation improper because the corporation was a party. The facts and exhibits presented through that affirmation should not have been considered. Even if considered, the affirmation did not meaningfully address or rebut the IME report. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the fifth cause of action.

Reported in New York Official Reports at High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 51900(U))

[*1]

High Quality Med., P.C. v Mercury Ins. Co.

2010 NY Slip Op 51900(U) [29 Misc 3d 132(A)]

Decided on November 8, 2010

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 8, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1630 K C.

High Quality Medical, P.C. as Assignee of VALEUS COLVINSON, Respondent,
against
Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered March 19, 2009. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the fifth cause of action.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant’s motion for summary judgment dismissing the fifth cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing plaintiff’s fifth cause of action on the ground that the services rendered were not medically necessary. The Civil Court denied defendant’s motion, finding that plaintiff’s doctor’s affirmation raised a triable issue of fact. This appeal by defendant ensued.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant’s denial of claim form, which had denied the claim at issue of the ground of lack of medical necessity, was timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit executed by the doctor who had performed an independent medical examination (IME), as well as an affirmed IME report, establishing, prima facie, a lack of medical necessity for the services at issue (see Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]).

In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Nihamin. In its reply papers, defendant objected to said affirmation on the ground that the affirmation failed to comply with CPLR 2106. Although the Civil Court found that defendant had failed to prove that Dr. Nihamin was plaintiff’s principal, the claim form submitted to defendant by plaintiff identified Dr. Nihamin as plaintiff’s principal. As a result, the submission of Dr. Nihamin’s affirmation was improper because Dr. Nihamin is a principal of plaintiff [*2]professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti, 265 AD2d 540 [1999]). Since the Civil Court should not have considered any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Even if Dr. Nihamin’s affirmation were considered, plaintiff nevertheless failed to raise an issue of fact as Dr. Nihamin did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing plaintiff’s fifth cause of action is granted (A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 08, 2010

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the IME doctor's affidavit and affirmed IME report established lack of medical necessity, and the provider's principal's affirmation was inadmissible under CPLR 2106 and in any event did not meaningfully refer to the IME conclusions.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's affidavit sufficient to establish that its medical-necessity denial was timely mailed in accordance with its standard office practices and procedures.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 51412(U)) FollowedThe insurer's peer review supplied a factual basis and medical rationale sufficient to raise a triable issue of medical necessity.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Cited by

A label shows how the later decision treated this one.

Radiology Today, P.C. v Mercury Ins. Co. (2012 NY Slip Op 50148(U)) FollowedThe provider's owner's affirmation was improper under CPLR 2106 and failed to rebut the insurer's medical-necessity peer review.
Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50151(U)) FollowedThe insurer's chiropractic peer reviews were not in admissible form and failed to support summary judgment on medical necessity.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U)) FollowedThe insurer's peer review reports were inadmissible because they used a psychologist's affirmations rather than sworn statements.
American Tr. Ins. Co. v Right Choice Supply, Inc. (2023 NY Slip Op 23039)A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review.

Similar decisions

Crotona Hgts. Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 52019(U))A physician who is a principal of the provider corporation may not submit an affirmation under CPLR 2106 in its action.
High Quality Med., P.C. v GEICO Ins. Co. (2011 NY Slip Op 52373(U))The insurer's peer review and IME reports established lack of medical necessity, and the provider's medical affidavit failed to rebut them.
St. Vincent Med. Care, P.C. v Mercury Cas. Co. (2009 NY Slip Op 50810(U))The provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's medical-necessity showing.
Gz Med. & Diagnostic, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50491(U))The provider failed to rebut the insurer's peer review report or show that discovery was needed to oppose partial summary judgment.
Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))The insurer's unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary.